An agreement, under date 3d November, 1803, between John W. Scott and William Donaldson, was also produced, as per Spanish copy, p. 19, which describes the land with "a front of twenty-nine arpens, with all the depth which can be found." 2d. The Daniel Clarke tract. -The said Lafon, on the 25th September, 1805, alleging himself to be a surveyor commissioned by Governor Clai. borne, as aforesaid, certified a plat and certificate of survey of this tract, conformably, as he says, to a survey made by Marrener, and to measurements which he, Lafon, had executed in November, 1804, upon the river Amite and environs of Galveston, which plat was composed of two parcels of land, one acquired from Marrener and the other from William Conway, in which he represents the river Amite and Iberville as the northern boundary of the tract, giving the length of the lower side line as three huudred and fifty-one arpens, and giving the upper as three hundred and eighty arpens. (See copy of certificate among the proceedings of the commissioners, Senate Doc. No. 45, page 13. See also plat C, hereunto annexed.) Several conveyances were also laid before the board respecting this portion of the claim, which it becomes important to examine, so far as relates to the language employed in describing the depth of the grant. 1. Conveyance bearing date 14th December, 1785, from the proprietor, Maurice Conway, to Patrick Conway, of "ten arpens of front, with the depth which comprehends the title of the said lands." (Senate Doc. No. 45, page 14.) 2. Conveyance dated 17th March, 1802, from Patrick Conway to William Marrener, of "ten arpens of front, and the depth corresponding to the title granted by this government to Maurice Conway." (Senate Doc. No. 45, page 14.) 3. Conveyance dated 8th January, 1805, from William Marrener to Daniel Clarke, as "ten arpens front, with the depth according to the title of concession conferred by the late government to the late Maurice Conway." (Senate Doc. No. 45, page 15.) 4. Conveyance dated 11th June, 1805, William Conway to Daniel Clarke, of a portion of the land which he describes as "having ten arpens of face upon the river, bounded above by the lands of the buyer, and below by those of the seller, and extends in depth to the river Amite, sold according to the general title which is in the vendor, from having acquired it from Maurice Conway, by act of the 27th October, 1786." (See Senate Doc. No. 45, page 13.) It will hereafter appear that the conveyance above referred to, from Maurice Conway to William Conway, was produced before the board in the proceedings in relation to the third tract, and that it does not claim to the Amite. 3d. The William Conway tract. In this case, as in the two former, a plat and certificate of survey were produced before the commissioners, under the signature of Lafon, bearing date 20th February, 1806, in which certificate he alleges himself to be a deputy surveyor under Isaac Briggs, surveyor general of lands south of Tennessee. The certificate of survey states that the plat conforms to surveys exe cuted by Andry, surveyor, in March, 1804, and those which he, Lafon, made in December, 1803, and makes the front twenty-seven arpens, and the depth extending back to the river Amite and Lake Maurepas. (Senate Doc. No. 45, page 6. See also plat D, hereunto annexed.) : The petition of Maurice Conway, and the proceedings thereon, were also produced. Pursuing the order adopted in reference to the other tracts, I will now proceed to examine the conveyances offered to the commissioners in sup port of this branch of the title. 1. Conveyance from Maurice Conway to William Conway, bearing date 27th October, 1786, by which he conveyed to said William "twenty. seven arpens of front, more or less, with the depth according to the title of concession that his excellency Senor Count Galvez gave by his decree of the 21st June, 1777." By the same deed he also conveyed to said William eight arpens by forty in depth, acquired by transfer from the heirs of Landry, 18th October, 1776. (See Senate Doc. No. 45, page 10.) 2. Conveyance of Peter Part to William Conway, dated 27th March, 1791, by which he conveyed to said William, in exchange for other lan is, "five and a half arpens of front, by the depth of forty arpens." (Senate Doc. No. 45, page 11.) The only account I have been able to discover of the derivation of Part's title, is contained in the aforesaid certificate of Lafon, from which it appears that Conway claimed title to this portion of the lands included in the plat under a conveyance of Maurice Conway to one Oliver Pollock, which it appears had belonged successively to a Dr. Anderson and one Belsey alios Miro, who, having died, four and a half arpens in front by forty in depth had been purchased by Part from his testamentary executor, and exchanged with said Conway for other lands. It is by no means certain that this included the whole of the title vested in Pollock, as will be seen by a reference to the deed of Maurice Conway hereafter mentioned. The only one of these conveyances produced before the commissioners in support of the claim to this tract, was the above-named deed of Part to Conway. The certificate also states, that William Conway claimed the rear lands as heir to his uncle. This is the substance of William Conway's title, according to the certificate under which he claimed the whole lands described in the plat. In addition to the conveyances laid before the commissioners, I find, among the papers annexed to the memorial of the heirs of Wade Hamp ton, a Spanish copy of a deed by Maurice Conway to Oliver Pollock, bearing date March 5, 1778, which conveys "thirty six arpens front, and the depth as far as the lake." (See Hampton's memorial, p 21.) Annexed to the memorial aforesaid is also a mortgage by William Conway, describing himself as heir of Maurice Conway, to Oliver Pollock, bearing date February 5, 1795, in which he describes the lands mortgaged as "thirty arpens of front, and depth as far as the lake." (p. 23.) There is also among the papers transmitted from the General Land Office what purports to be a Spanish copy of a conveyance or mortgage by William Conway to John Joyce, dated April 7, 1798, in which he de. scribes the lands mortgaged as "thirty arpens of front, and the depth as far as the lake." The commissioners appointed in pursuance of the act of the 2d March, 1805, and possessing no other authority than what is conferred upon them by its provisions, confirmed these claims. The decisions on the Conway and Clarke claims bear date respectively on the 3d March, 1806, and the decision on the Donaldson and Scott claim on the 10th of the same month. The following is that on the Donaldson and Scott claim: "William Donaldson and John W. Scott claim a tract of land situated in the county of Acadia, on the left bank of the Mississippi, about twentytwo leagues above the city of New Orleans, containing twenty nine acres in front, with the depth to the river Amite, bounded on the upper side by land of one Simonet, and on the lower by land of Daniel Clarke It ap. pearing to the board, from an instrument of writing exhibited, that said land was sold at public auction on the 12th day of August, 1798, before : Evan Jones, at that time commandant of Lafourche, to Louis Faure, and it appearing, from sundry deeds of conveyance, likewise exhibited, that said land has become the property of the present claimant, the board do hereby confirm his said claim." i ! ! ! The other two are so nearly similar that it is considered unnecessary to give them. (Senate Doc. No. 45, pp. 12, 16, 21.) These decisions were made before one of the commissioners became a member of the board, and, as far as he was authorized to do so, he dissented from them. (Senate Doc. No. 45, р. 6.) Passing over, for the present, the consideration of the various acts of Congress subsequent to the decisions, it only remains, in order to exhibit a summary view of the case, to trace, as briefly as is consistent with a proper understanding of the subject, the action of the executive department of the government in relation to the claim, and especially of the General Land Office, and to examine into the circumstances under which the patents were issued, with the sole purpose of forming an opinion as to the legality of the authority assumed in granting them. In order to a better understanding of the subsequent proceedings, it is proper to remark, that the first two parcels above named were purchased by the late General Hampton, of South Carolina, prior to the issuing of the patents, and now appear to be claimed in common by Messrs. Preston and Manning, in right of their respective wives, who were the daughters of said Hampton. The grantees of the Conway tract have also, as it would seem, conveyed their interest, which is now claimed by Mr. Rightor and others. No opportunity has been afforded to examine either of these conveyances. On the 14th January, 1829, James P. Turner, then surveyor general, addressed a communication to Mr. Graham, Cominissioner of the General Land Office, enclosing to him a rough plat of the tract claimed, showing its locality and extent, and that it interfered in part with other grants by the Spanish government, in which he says, that "the Spanish govern. ment did (previously and subsequent to the date of this grant) make other grants to a number of individuals within the limits now pretended to be covered by the grant of Conway; and further, I believe it will not be denied that there never was any pretensions made for the present extent of the claim, until after the right of the land in question became vested in the United States. And there is still another reason why this grant cannot be extended to the Amite river; that is, the petition of Conway, the decree of the governor, nor the proceedings of the surveyor, call for nor exhibit no such boundary; and it is a fact well known, that it was the custom of the Spanish surveyors, in all cases where the grant called for specified boundaries, to exhibit such boundaries in their plat of survey. He also suggests that, if governed by the customs of the Spanish government, which he presumed could alone be the guide, he should commence at a certain point, run General Hampton "off such depth as would carry us back on the upper line, until it will intersect an older grant marked B, which appears to be strictly conformable to the decree of the Spanish gor. ernor, although this will not give the claim a depth of eighty arpeus on the upper line, which I believe it was designed to have if found to be va cant." And he requests instructions. (Senate Doc No. 45, р 24.) To this letter Mr. Graham replied on the 17th February, 1829, and ex presses the opinion that the grant is so vague in its terms, as to boundary and quantity, that it will be necessary for the courts of justice to inter. fere, for the purpose of defining and designating both; and that it is im possible the courts can sanction the boundaries as claimed. He says "the object and purpose for which the grant was asked and obtained will, therefore, be the leading considerations on which the courts will pro bably decide the question; and, in so deciding, they possibly may limit the grant either to the limits of the survey actually made by Louis Andry, or to the termination of eighty arpens, the usual extent granted when the front grant was deficient in timber or otherwise; or to the dis tance of one and a half league, as required in the petition. Should the court assume any of these limits, facts and circumstances may possibly occur, in the investigation of the subject, that may induce it (the court) to extend the back line so as to be equidistant from any part of the river. If, therefore, in making your surveys, you assume this limitation (to wit, a league and a half) as the extent of the grant to Maurice Conway, dated the 21st June, 1777, I think that we shall have given full scope for the court to exercise its discretion; and if the grant can be so adjudged as to exceed those limits, then it must extend to the utmost boundary of Louisiana, as they existed at the date of the grant, and to which the two described lines can be extended." He further states that the decision of the commissioners can only be considered as recognising the validity of the grant as a complete title, and not as confirming any other lands than those included in its terms; and directs the surveyor general, in laying down the tracts on his plat, to designate the boundaries as far as Andry surveyed by black lines, as also the confirmed claims interfering with it, and to delineate the residue of the tract by dotted lines. (Senate Doc. No. 45, p. 26.) Mr. Graham having thus decided that a league and a half in depth was not open to entry, and given directions accordingly, the lands in the rear, between that and the Amite river, seem to have been treated as public lands, and numerous sales of them were made at the district land office. The views of Mr. Brown, the successor of Mr. Graham, are also very clearly stated in his letter of the 17th June, 1836, addressed to the register at New Orleans. This communication appears to have been prepared in consequence of one received from Mr. Preston, wherein he ap plied for a patent; or in case one should not be issued, he requested that the lands within the limits of the claim should be withheld from sale, and that patents should not be issued for the parcels sold. Responsive to these requests, as it would seem, Mr. Brown says to the register, "that although this office cannot recognise the claim as confirmed, under any circumstances, to the extent contended for by the parties interested, yet, as as the law prohibits the sale of any lands to which a claim was filed in due time **, the sale of any portion of the land within the limits claimed *** is unauthorized." He therefore instructs him to withhold all lands within the lines claimed from entry, and to send an abstract of the sales made, that the issuing of patents may be prevented; and directs him, 6 in case he should deem it necessary, to procure from the surveyor general a diagram showing the lands included in the grant as claimed before the commissioners. (Senate Doc. No. 45, p. 28.) On the same day he also addressed a communication to Mr. Nicholas, then one of the senators from Louisiana, by whom the letter of Mr. Preston had been sent to him, stating that, inasmuch as he did not consider the claim as recognised by the United States to the extent claimed, he could not issue a patent, but had directed the register to withhold the lands from entry. (Senate Doc. No. 45, p. 28.) In 1837 Mr. Preston again applied to the General Land Office, alleging that the land officers at New Orleans had permitted pre-emptions and floats to be located on the land, and requested them to be cancelled. (Senate Doc. No. 45, p. 29.) The papers in the case were thereupon submitted by Mr. Whitcomb, the then Commissioner, to Mr. Birchard, the Solicitor of the General Land Office, who, on the 2d December, 1837, gave his written opinion that the claimants have "no legal title or equitable right whatever to any land without the bounds of the tract heretofore surveyed for them, as derived from the Spanish government, from the Indians," or from the United States, and that the parties who had purchased had acquired an equitable if, not a legal right, to demand that their titles should be perfected; and suggested to the Commissioner that he should recommend to Congress to quiet all doubt about the titles of the purchasers by a special act. (Senate Doc. No. 45, pp 40, 42.) On the 27th December, 1837, the memorial of Mr. Preston in behalf of the heirs of Gen. Hampton, before referred to, was presented to the Senate, in which he prays that the Commissioner of the General Land Office should be directed to refuse titles to those who had purchased by pre-emption or otherwise, by refunding the money paid and taking up the certificates of entry as far as possible, as also that he should be directed forthwith to issue a patent for the whole of the claim. This memorial was ordered to be printed on the 29th January, 1838, and is Senate Document No. 144, 2d session 25th Congress. The Journal of the Senate shows that the Committee on Private Land Claims, to whom it had been referred, were discharged from the subject on the 7th July, 1838. It next appears that Mr. Secretary Woodbury, on the 14th February, 1838, made a communication to the Senate respecting land claims in Louisiana, containing a report from Mr. Whitcomb, in which the latter concurs in the aforesaid conclusions of Mr. Birchard with respect to the claim. (See Senate Doc. No. 197, 2d session 25th Congress, p. 2.) Nothing further seems to have been done in the case until the 19th March, 1839, when an application was made in behalf of some of the purchasers from the government for patents, and suggesting also that the land officers should be directed to receive payment from the pre-emptioners who had presented the evidences of their claims. (Senate Doc. No. 45, pp. 43, 48.) This application being referred to the Solicitor, he, on the 20th March, 1839, adhered to his former views, and expressed the opinion that the purchasers were entitled to patents. He, however, advised the Commissioner, as the question was important, and his predecessors had disagreed on the subject, that he should ask the opinion of the Attorney General and the direction of the Secretary of the Treasury. (Senate Doc. No. 45, p. 48.) |